Last week’s Guardian ran the story about the leaked UK Border Agency document proposing the abolition of appeal rights for both migrants with family visit visas (i.e. for family members of British/settled citizens), and for PBS workers in the UK.
A quick scan of the document shows that the rationale for the proposals is clearly financial. The UK Border Agency has been asked to make cuts of 20% to its expenditure, and so this is what it’s come up with.
Cost calculations family visit appeals
The leaked document focuses on family visit appeals and calculates that savings of £8-12 million per year for the UK Border Agency and £16-24 million for the MoJ could be made through the abolition of rights of appeal for family visits.
It’s not clear how the above figure has been calculated, and whether for example it includes an estimate of the additional costs that one can expect to arise as a consequence of the above proposal through the more frequent use of judicial review; or whether it takes into account future proposals to charge appeal fees in the tribunal, or the anticipated reduction in MoJ costs resulting from an anticipated reduction in appeals in the event that the legal aid proposals are implemented – we suspect not – in which case the financial savings are likely to be lower.
The shape of things to come
While the internal decision to press ahead with the removal of appeal rights for family visitors and PBS workers has not, as far as we know, as yet been taken by the Government, the paper seems to envisage bringing forward at least the family visit appeals measures during the second Parliamentary session (i.e. between November 2011- November 2012) through their insertion in ‘other departments’ bills’.
The paper acknowledges that it would need to retain some residual rights of appeal on the basis of the Human Rights Act 1998 and the Race Relations Act.
The position with the PBS appeals appears to be a a little more complex, and may as the require more time, and therefore perhaps a different legislative timetable as there is a reference to setting up a potential replacement in the form of adminstrative review.
The need for appeals
As the paper itself accepts, the allowed appeal rate for family visit appeals lies at well over a quarter of all cases. In fact, 36% of appeals succeed at appeal level. This suggests that there are serious problems with the decision-making process.
The leaked paper (which focuses on family visitor appeals as PBS appeals seem to have been discussed elsewhere) argues that many appeals only succeed because of the submission of further documentation at the appeal stage (which, according to the Home Affairs Select Committee, was the case in 50% of appeals). Accordingly, UKBA maintains that this justifies the removal of appeal rights – they argue there is the residual ability to submit yet a further application supported by a further fee.
Whilst the above may well be true, it also conceals the fact that applicants in practice often go on to submit further evidence because doubt is cast on the veracity of their application – in particular their intention to return home and their ability to support themselves.
The leaked paper says nothing about more general discrimination either. Although current statistics make it more difficult to establish the rate of refusal for different countries, Macdonald’s for example notes that previous statistics for visitors as a whole have shown a ‘a much higher rate of refusal’ from countries such as Ghana, Nigeria, Pakistan, Bangladesh and Jamaica compared with the US, Canada, Australia or New Zealand.
Add to the above, the operation of a legally dodgy and variable so-called ‘risk policy’ that appears to operate outside of the Rules and to apply to all countries in seemingly all cases, and one starts to see why principles of equality, and respect for the rule of law demand an appropriate mechanism to check the actions of immigrations officers through scrutinising their findings, decisions, and all of the relevant evidence upon which they are based. That mechanism is a right of appeal.